Deana A Pollard

Violent Video Games & "Constitutionalized" Negligence

Deana Ann Pollard Sacks — Tue, 08 Mar 2011 17:08:45 PST

Violent video games create serious risks of harm to children’s brain functioning, health, and safety. Extremely wealthy game producers’ demonstrated disregard for children’s safety raises questions about lower courts’ negligent speech liability rules that effectively bar tort liability for unreasonably dangerous speech, including violent video games. Violent Video Games & “Constitutionalized” Negligence reviews the latest scientific data on the effects of violent video games on children and challenges the prevailing negligent speech liability rules generally, and specifically relative to violent video game producers’ relationship with children. Most courts have adopted the Brandenburg incitement test to prove fault and causation in violent media and other dangerous speech cases, but the incitement test cannot properly address issues of fault and causation in such cases. The incitement test should be replaced by a “constitutionalized” negligence paradigm, consistent with the Supreme Court’s method of “constitutionalizing” tort liability for speech by raising the prima facie evidentiary requirements of tort claims to reconcile them with the First Amendment. Violent Video Games & “Constitutionalized” Negligence proposes a constitutionalized negligence paradigm for analyzing tort liability for clearly unreasonably dangerous speech that in fact causes serious injury or death, and contextualizes the test relative to the facts concerning the violent video game industry and children.

CALIFORNIA'S INTEREST IN SCHWARZENEGGER V. ENTERTAINMENT MERCHANTS ASSOCIATION

Deana Ann Pollard Sacks — Mon, 17 Jan 2011 11:04:38 PST

The issue pending before the Supreme Court in Schwarzenegger v. Entertainment Merchants Association is whether a California law prohibiting the sale of the most violent “morbid or deviant” video games to minors violates the minors’ First Amendment right to receive the video game “speech.” The manner in which the Ninth Circuit has framed this issue, however, fails to identify fully all of the minors’ First Amendment interests at risk on both sides of the controversy. The most recent and credible scientific evidence concerning the risks that violent video games pose to the mental health of minors has constitutional implications that suggest that the challenged sales regulation should be recognized as preserving minors’ First Amendment rights, not infringing upon them. California’s Interest in Schwarzenegger v. Entertainment Merchants Association reviews the most recent empirical data and the researchers’ conclusions in light of the theories and policies that animate First Amendment jurisprudence, and concludes that the California sales regulation should be upheld because it likely furthers minors’ First Amendment rights and related liberty interests.

California's Interest in Schwarzenegger v. Entertainment Merchants Association

Deana Ann Pollard Sacks — Thu, 13 Jan 2011 12:14:35 PST

The issue presented to the Court in Schwarzenegger v. Entertainment Merchants Association is whether a California sales regulation prohibiting the sale of the most violent “morbid or deviant” video games to minors under eighteen years of age violates the minors’ rights to receive the video game “speech.” The issue, as framed, fails to identify fully all of the minors’ First Amendment interests at risk on both sides of the controversy. When viewed from a broader perspective that considers the most recent and credible scientific evidence concerning the risks that violent video games pose to minors synthesized with constitutional policies, the challenged sales regulation should be recognized as preserving minors’ First Amendment rights, not infringing them. California’s Interest in Schwarzenegger v. Entertainment Merchants Association reviews the most recent empirical data and the researchers’ conclusions in light of the theories and policies that animate First Amendment jurisprudence and concludes that the California sales regulation should be upheld because it likely furthers minors’ First Amendment rights and related liberty interests.

SNYDER V. PHELPS & THE SUPREME COURT'S SPEECH-TORT JURISPRUDENCE: A PREDICTION

Deana Ann Pollard Sacks — Mon, 25 Oct 2010 09:42:54 PDT

In Snyder v. Phelps, members of the Westboro Baptist Church targeted a young marine’s untimely death to exemplify their hate-filled message to the world that “God Hates Fags” and retaliates against America for tolerating homosexuality by killing American soldiers. A jury awarded the marine’s father $10.9 million for invasion of privacy and emotional distress after the church members disseminated extremely hateful and personalized attacks against the fallen marine’s family. The Supreme Court is reviewing the case to determine whether civil liability based on invasive, hate-filled, injurious speech violates the First Amendment. In New York Times v. Sullivan, the Supreme Court began a process of “constitutionalizing” tort liability arising from speech by raising the prima facie case evidentiary requirements of various torts to reconcile the interests protected by tort law with the First Amendment. If the Court stays true to its established speech-tort methodology, it will balance the interests involved in Snyder v. Phelps and allow limited civil liability by raising Mr. Snyder’s burdens of proof to reconcile his tort claims with the First Amendment. This essay explains how the court is likely to accomplish this, based on the Court’s speech-tort precedent and the justices’ questions at oral argument on October 6, 2010.

NEGLIGENT SPEECH TORTS

Deana Pollard Sacks — Mon, 09 Aug 2010 13:30:22 PDT

Recent research on the effects of violent media on children has elevated longstanding controversy over civil liability for speech to a new level. NEGLIGENT SPEECH TORTS reviews and challenges prevailing negligent speech jurisprudence and proposes wholesale reform to the rules governing civil liability for unreasonably dangerous speech. The prevailing Brandenburg incitement test is inapposite as applied to modern dangerous speech cases and should be replaced by a “constitutionalized” negligence paradigm to reconcile First Amendment and tort policies. The Supreme Court has constitutionalized various other speech torts – such as defamation, privacy, and emotional torts – by raising their prima facie case evidentiary requirements to meet First Amendment scrutiny. The same evidentiary tailoring approach should be used to constitutionalize the tort of negligence, to allow limited liability where fault and causation can be established to a level of proof that satisfies the First Amendment. An analytical paradigm derived from the Supreme Court’s speech tort precedent is proposed to replace existing negligent speech liability rules, and the proposed paradigm is illustrated by reference to the contemporary problem of violent video games and children.

SPEECH TORTS

Deana Ann Pollard Sacks — Wed, 03 Mar 2010 21:20:30 PST

Tort liability for speech raises important concerns about federalism, self-government, and autonomy. The Supreme Court has resolved the free speech-tort law conflict in a number of cases by balancing the nature of the speech subject to tort liability against the nature of the state’s interest in imposing tort liability, then “constitutionalizing” the tort to meet First Amendment demands by raising the burden of proof to establish a prima facie case. The Supreme Court has repeatedly denied review of tort liability for speech based on a theory of negligence, and most lower courts have adopted a categorical approach to immunize violent and other allegedly negligent speech from tort liability unless it falls within a category of unprotected speech, instead of balancing the competing interests in accordance with Supreme Court precedent. The lower courts’ rules are internally inconsistent and can be socially counterproductive, which has led to a number of results-oriented exceptions that are unrelated logically or doctrinally. Speech torts reviews nearly a century of decisional law concerning tort liability for speech and concludes that the lower courts’ prevailing immunity rules for negligent speech should be replaced by a balancing test to determine the proper level of constitutional scrutiny of laws imposing liability for negligent speech. Speech Torts concludes with suggested prima facie cases of “constitutionalized negligence” to meet strict, intermediate, and relaxed review of negligent speech tort liability.

STATE ACTORS BEATING CHILDREN: A CALL FOR JUDICIAL RELIEF

Deana Ann Pollard Sacks — Wed, 20 Aug 2008 15:57:42 PDT

Controversy over public school corporal punishment is at an all-time high. On August 20, 2008, the Human Rights Watch/ACLU brought public attention to the issue by releasing its report on corporal punishment of children in American public schools. Lawsuits challenging this state action on constitutional grounds continue to be filed, as advocates seeking to ban school paddling refuse to accept that beating students is constitutionally permissible, despite their repeated losses in the federal courts, and the Supreme Court’s refusal to consider the issue again on June 23, 2008. Ignoring the uproar, nearly half of the United States continue to employ corporal punishment in public schools despite compelling evidence that it is counterproductive to state educational objectives and creates serious physical, emotional, and other risks to children. This article considers existing jurisprudence relative to public school corporal punishment and argues that the current majority rule is constitutionally infirm, and that no court has ever engaged a meaningful means-to-ends analysis in accordance with Meyer v. Nebraska and its progeny. Based on scientific and other evidence regarding the inefficacy of corporal punishment and its dangerous consequences for schoolchildren, this article concludes that it is a legislative deprivation of substantive due process and a denial of equal protection of the laws protecting all other citizens from assault and battery. In addition, because children are excluded from protection from physical punishment based on inaccurate, historical assumptions regarding their innate character, laws authorizing corporal punishment of children only are unconstitutional under a legislative motive equal protection analysis.